From Inksters Solicitors

Tag Archives: Common Grazings Committee

In a hard hitting editorial in the latest edition (16 September 2016) of the West Highland Free Press it was made clear by the editor that he considers that the Crofting Commission needs ministerial advice and direction and that Colin Kennedy’s continuing tenure as Convener must be in doubt.

I will reproduce the editorial in question here followed by some of my own thoughts on the matter

The Crofting Commission needs ministerial advice and direction

The self-created crisis within the Crofting Commission has gone past the point where it can be healed internally. Public and decisive ministerial intervention is now required.

On the most mundane but incendiary points which lit the blaze, the Crofting Commission can be pronounced quite wrong.

Grazings committees should have the right to determine in which manner their income is spent, under the law and to the benefit of the community.

Grazings committees such as those at Upper Coll and Mangersta should not be obliged instantly to distribute funds as dividends and then reclaim the money in order to finance improvements.

Without those commonplace – and previously widely accepted – permissions, west-coast crofting in particular would suffer.

Grazings committees, which are the voluntary foundation of the system, would become almost impossible to establish. It should be pointed out here that crofting commissioners are paid £8,600 a year for four-and-a-half days’ work a month, and the commissioner’s convener is paid £20,300 for an eight-day month. Grazings committee member are paid nothing.

Crofting would become even less of a communal activity and even more of a private, individual enterprise. It beggars belief that a large reason for the recent dictatorial action by the Crofting Commission was the fact that Upper Coll grazings committee made assets available to infrastructure projects which benefited not only crofters but also the wider community.

In the three years of its existence the present Crofting Commission has managed to lose three of its seven members, and its chief executive Catriona Maclean has now packed her bags and moved on to happier pastures.

By any standards, this is a failing institution. The response of the new crofting minister, Fergus Ewing, has been inadequate.

Last month Mr Ewing wrote a private letter to the commission’s controversial chair, Colin Kennedy. In that letter the crofting minister told Mr Kennedy that he and the Scottish Government “wholly disagreed” with the Crofting Commission’s actions and attitudes towards grazings committees.

Most importantly, Fergus Ewing wrote that as crofting minister he considers that the law “does not require the immediate disbursement or pay out of funds by a grazings committee”.

In other words, Colin Kennedy’s interpretation of crofting law had been wrong from the start. As a result all of his subsequent actions had been, at best, invalid.

This private letter was then leaked to the veteran BBC Highland correspondent Jackie O’Brien. It seems probable that Mr Ewing authorised the leak in order to shore up his credentials with crofters.

That also was unacceptable. As crofting minister Mr Ewing has a duty to be open and transparent in the exercise of his responsibility. He is not just another interested observer.

He also has a duty to the crofting community to ensure that its governing body adheres to best practice and does not trample crofters into the ground. Colin Kennedy’s Crofting Commission is currently preparing “draft guidance” for grazings committees. We hope that Fergus Ewing is fully involved in that exercise. We wait to see whether that guidance will follow the Kennedy or the Ewing version of legislation. There can be no compromise. It is difficult to see how Mr Kennedy can emerge from the process with his £20,000 part-time post intact.

This unpleasant chain of events should not shake our belief in democracy. We continue to believe that the entire Crofting Commission should be elected by crofters rather than composed of professional quangoteers and other government appointees.

Many hundred of crofters in large parts of the Highlands and Islands cast their votes ill-advisedly three years ago, and a lot of them will now realise that.

Thanks to the democratic system, they will have the chance to put things right at the elections next spring. We hope that they, and the many crofters who previously chose not to vote, will take that chance. In the long as well as the short term, the future of crofting is at stake.

View from the Crofting Law Blog

I must wholeheartedly agree with this editorial in so far as the need for “public and decisive ministerial intervention”. Indeed I suggested that in my first blog post on this sorry saga back on 25 April 2016. There have been calls since by the Crofting Federation and by crofters for the same thing. To see the West Highland Free Press support the same calls is heartening indeed and must add to the pressure on Fergus Ewing MSP, Cabinet Secretary with responsibility for crofting, to do something about it.

The jury is still out as far as I am concerned about the idea of the entire Crofting Commission being elected by crofters “rather than composed of professional quangoteers and other government appointees”. The problems at the Crofting Commission seem to lie at the door of elected commissioners or perhaps an elected commissioner. Two of the government appointees (who by all accounts were very able and capable commissioners) have resigned in recent times and have yet to be replaced.

The calibre of elected commissioners may be very much down to those willing to put themselves up for election rather than the will of the crofting electorate.

With the Crofting Commission in its current mess there is a good chance that there won’t be many level headed crofters volunteering for the task of clearing that mess up come the 2017 elections. Possibly another solution is required. Answers on the back of a postcard please to Fergus Ewing MSP.

I responded to those attacks although I had already done so elsewhere with my previous comments simply being ignored by Mr Souter as though they were never written.

Once more that is the approach adopted by Mr Souter in his latest (and last) letter published by Scottish Legal News yesterday. “Last letter” in that Scottish Legal News have not surprisingly now closed debate between me and Mr Souter through their pages.

Whist Scottish Legal News have understandably brought the debate to an end through their own pages I will continue it here as there is a need to correct the misleading statements, once more, made by Mr Souter. I will, as I have done before, quote sections of Mr Souter’s letter (in italics) with my analysis following each section:-

I note Mr Inkster has shared another article published on Scottish Legal News. I have no intention of inflicting this debate upon your readers as a series of articles but will merely address what I believe to be THE crucial point, missed from all of his recent writings.

The Common Grazings is about ALL the shareholders and NOT the Committee. When a Committee takes it upon itself to make decisions, other than those relating to the maintenance of the Common Grazings, without reference to shareholders, it loses its mandate…..and its credibility. I have never disputed the rights of any individual to seek professional legal advice, nor would I do so. The point which I hope will not escape readers attention is that the Committee, in accessing and spending money which belongs to ALL shareholders, has exceeded their authority, if it does not first seek shareholder approval for that spend. And that is the case, as shown in the Minute Book.

The former committee have always maintained that their meetings were open to all shareholders and decisions were not taken in isolation. They were recently reported as stating:-

“The constable seems unable to understand that in the spirit of openness and transparency over the years in Upper Coll, all meetings were advertised and open to all shareholders, that all decisions were taken by the majority of those attending and that all these decisions were minuted.”

I imagine that the former committee would normally have had meetings with much more than 4 shareholders in attendance (that being the number of shareholders out of a total of 42 that Mr Souter proceeded to conduct business with on Tuesday night).

Mr Souter has taken many decisions on his own account without any recourse to shareholders: obtaining the Opinion of a QC on VAT matters via the Crofting Commission; writing to HMRC querying the right of common grazings (anywhere it would seem and not just Upper Coll) to be VAT registered; writing to numerous parties including myself concerning various spurious matters with insinuations and threats; meeting with Western Isles Council over matters decided by shareholders 8 years or more ago; seeking to involve the Crown Office & Procurator Fiscal Service in undisclosed matters.

In all the accusations about shareholders not being consulted over matters has Mr Souter ever thought to actually ask shareholders whether or not they approved decisions previously made?

If any didn’t (I doubt if there would be many decisions, if any, that would fall into that category) then that would be a matter for any such aggrieved individual shareholder to pursue (if excluded illegally from a decision making process that should have legally included them).

This is not something that Mr Souter can pursue in any way on their behalf. He is deluded in the extreme if he thinks he has such power even were his appointment a legal one.

As a continuing course of conduct, failing to consult and seek approval from the wider body of shareholders serves only to undermine the relationship between the Committee and the shareholders. The resulting friction and rift that has opened up over time, can be traced back to an evident lack of willingness on the part of the Committee to consult, seek and record shareholders views to support Committee activity. My conclusion follows a simple analysis of the records of the Grazings, including the Minutes of meetings of both the Committee and of ordinary shareholders. Doubtless, Mr Inkster will challenge the validity of my conclusions. I can only say, on a factual point, that I am better positioned to comment by virtue of possessing the historical Minute Book, which is the place where you would reasonably expect such detail to be entered. Even disregarding the official Minute Book (and why would you?), there is the evidence offered by shareholders themselves at more recent shareholder meetings, confirming my own conclusion.

Again Mr Souter’s conclusions “follows a simple analysis of records” and not what the shareholders say the position actually was. His reference to “the evidence offered by shareholders themselves at more recent shareholder meetings, confirming” his “own conclusion” can immediately be dismissed on the basis that this is what 4 out of 42 shareholders may have told him. I understand that those 4 shareholders did not often attend shareholders meetings although it was of course open to them to do so.

The irony is that Mr Souter keeps saying that all shareholders should be consulted yet he is holding meetings with just 4 shareholders and making decisions that affect all shareholders (sometimes without any meetings at all) when he knows that at least 26 out of 42 shareholders (i.e. a clear majority) do not support him or his actions.

All parties involved have a duty to act responsibly and engage positively to help move towards a point of resolution. The most recent meeting of shareholders on 13 September saw fit to vote and unanimously support my activity in office to date, and a series of continuing actions outlined by me, to the meeting, as just one of a number of votes that took place. Many present stated this was the first opportunity they had had in recent years to vote on matters and hoped it was a sign of things to come. Shareholders also voted on a new set of Grazings Regulations, consulted upon over the last three months and once endorsed by the Crofting Commission will, I believe, go some way to improving the framework under which the grazings operates.

Again Mr Souter omits the all important numbers and actual facts as though they do not exist. The unanimous support he refers to amounts to possibly only 4 out of 42 shareholders. Mr Souter was presented with a petition by 26 out of 42 shareholders which reads:-

“I support the election of a new Grazings Committee to run the affairs of Upper Coll Township. I also request the removal of the illegally imposed Grazings Constable with immediate effect.”

The “many present” is possibly a maximum of 4. Their “first opportunity” may possibly be because it is the first time they have chosen to attend a shareholders meeting.

Mr Souter was critical of me before for not divulging numbers of attendees at a meting called by shareholders when I didn’t actually know the numbers. In that case he claimed “9 out of 42 shareholders was never a majority“. He knows the numbers in this instance and so perhaps it is he who is now painting “a rather disingenuous picture“? Especially when 4 out of 42 is certainly nowhere near a majority. But 26 out of 42 is.

Mr Souter was also of the view that those who didn’t attend meetings called by the shareholders were “voting with their feet“. On 13 September there were 11 shareholders who actually walked out on his meeting. That is voting with your feet if ever you saw it. If you follow Mr Souter’s view on shareholders meetings and actual support then 38 out of 42 shareholders voted with their feet on 13 September against Mr Souter. He must therefore accept, by his own reasoning, that he has no mandate at Upper Coll.

It is a matter for regret that Mr Inkster has failed to correspond with me, to answer my query and to confirm the existence (and provide a copy) of his letter of engagement, for review by Upper Coll shareholders. His claim that I am “illegally appointed” has been rejected by the Crofting Commission in their letter to shareholders of 8 September. It is simply his opinion on the matter but I nevertheless defend his right to hold that opinion.

Mr Souter yet again completely ignores the fact that I have in fact responded to his letters by way of a seven page letter copied to him but directed to his ultimate employer, the Scottish Government. After all Mr Souter does declare on his LinkedIn page that he is “engaged to support Scottish Government NDPB Crofting Commission, in investigative and reporting activity“.

If I take issue with his behaviour in correspondence issued by him to me, as I do, then I am well within my rights to take that behaviour up with his employers, as I have done. That is certainly not a failure to correspond.

I clearly cannot provide someone who has not instructed me with information provided to someone who did! The Law Society of Scotland would have something to say about any solicitor being persuaded to unethically do so.

Any challenge on the question of the legality of the appointment of grazings ‘constables’ to the Crofting Commission has been met by a simple assertion that as it was a “final decision” of the Commission it is one that cannot be revisited by them. Even although they are unable to show where in law it is stated that they cannot revisit decisions and this is something they have been seen to do on other occasions!

Thus, in effect, the Commission are saying that they may well have made an illegal decision but they have no power to reverse or change such an illegal decision!

Should he wish to press the matter further, then he is clearly aware of the legal process to follow.

Indeed I am, which is more than the Crofting Commission appear to be aware of.

The continual misrepresentation of the situation in the press by disaffected former Committee members and the media profile enjoyed along with their followers, is a matter of ongoing disappointment. For my own part, I will continue to invite all shareholders to participate at official meetings and contribute positively to the future of their Common Grazings.

From the other side of the fence the misrepresentation is clearly on the part of Mr Souter and the Crofting Commission. A reading of this latest letter from Mr Souter alone taken together with my responses thereto is evidence enough of that.

Given the nature of the ongoing dispute, this article does not reflect the views of all Upper Coll shareholders.

But alas not for ‘Constable’ Souter. He felt it necessary to air his views once more (and ignore the points already made by me to him via this blog) in front of a large number of lawyers by submitting a letter for publication this week in Scottish Legal News. I reproduce here his letter and my response thereto:-

As the Grazings Constable for Upper Coll, I took over under difficult circumstances, after the former Committee had been put out of office by the statutory regulator (Crofting Commission) for reasons too long to explore in this short piece. Mr Inkster had been engaged by the former Committee for legal advice, whilst they were in dispute with the Commission but apparently without the matter having been put to a wider shareholders meeting to receive the required majority/full vote. I sought to correspond with him in that capacity, having determined that the Crofting Act 1993 does not permit the use of shareholders funds by the Committee for that purpose. Activity may only be funded where it is for the “maintenance or improvement of the Common Grazing”.

I sought Mr Inkster’s co-operation in re-paying the £600 he received as payment. Mr Inkster has refused to acknowledge or respond to my correspondence but is happy to report and comment upon it, and many other related issues, to readers of his on-line blog.

Mr Inkster has presented a series of speculations, opinions and inferences in his VAT article, without demonstrating any desire to obtain a definitive outcome for those involved. I might be forgiven, I hope, for wondering why, if an expert on the subject, Mr Inkster does not already know definitively whether Committees are eligible to register for VAT and if raised as a legal point, surely it is in the interests of all parties to understand if they have somehow incurred a liability with potential for penalties? The fact of the matter, which undermines Mr Inkster’s conspiracy theory is quite simply that the former Committee included VAT in their annual Statement of Accounts presented to the Crofting Commission but set it out in a way that raised more questions than answers and whilst I am now speculating, I think it reasonable to conclude that the Commission, in responding to a review of those accounts, was left with little alternative other than to seek opinion from Senior Counsel to help address the matter. Senior Counsel, much respected in crofting circles, opined that there was no power for Grazings Committees to trade or to register for VAT under the Crofting Act 1993.

With ownership of the issue at Upper Coll and the need to resolve the matter, I brought it to HMRC and await their definitive response on the matter. If they determine the eligibility criteria have been met for registration, I will be delighted and can sign-off on one more point. If the contrary is true, then I have advocated for a “no-penalty resolution” to apply to all Grazings Committees who may be in a similar situation. The suggestion by those who align with Mr Inkster that being registered must mean they are entitled to be registered, clearly ignores the possibility that registration was made in error by those unaware of the legal status of Grazings Committees under the Crofting Act. Not a difficult scenario to envisage, I’d suggest.

I can only hope Scottish Legal News readers will appreciate my need to ensure shareholders interests at Upper Coll are properly protected and that the future framework in place for the management of the Grazings, when my short term in office expires, will be a legally compliant one. Liabilities will have been exposed for discussion and debate, and as far as possible, remedied. Given the circumstances, however, I cannot promise the remedies will satisfy everyone………least of all Mr Inkster.

My views attacked the Crofting Commission on this issue and called on an investigation by Fergus Ewing MSP, as cabinet secretary responsible for crofting, into what I considered could be dubbed ‘VATgate’.

It seems rather odd that a grazings ‘constable’ purportedly appointed by the Crofting Commission to manage the affairs of one particular common grazings on the Isle of Lewis should be acting as spokesman for the Crofting Commission on the issue. That is surely the responsibility of the Convener of the Crofting Commission.

That Mr Souter saw fit, at the same time, to draw to the attention of many solicitors that he considers them not entitled to be paid for legal services provided to shareholders in a common grazings is bold indeed.

On the basis that I do not recognise Mr Souter as having any legal standing whatsoever I am not about to respond to his demands to repay to him fees legitimately paid to my firm by a properly constituted grazings committee following the provision of legal advice to them.

Mr Souter has threatened to raise a small claims action against my firm and I am more than happy to see him in court. He is well aware that in such circumstances the Crofting Commission will be brought in as a party and there will be a counterclaim for the time, inconvenience and costs caused to me unnecessarily by Mr Souter.

A right for crofters to instruct lawyers does not need to be contained in tablets of stone within the Crofting Acts. It is a fundamental human right. The Magna Carta would be a good starting point for Mr Souter to look at!

Shareholders in common grazings have been instructing lawyers to represent and provide them with advice in numerous matters over many years. Is Mr Souter really suggesting that all those lawyers need to repay fees received for work undertaken and advice given?

Is Mr Souter really saying that shareholders could not have a lawyer representing them in an action brought against them in the Scottish Land Court?

Does Mr Souter really think it is okay for the Crofting Commission to hire top QCs in their questionable battles against shareholders in common grazings but that those shareholders cannot be afforded access to lawyers themselves?

Has Mr Souter not read the Guidance Notes issued by the Crofting Commission on the Management and Use of Common Grazings? These Guidance Notes contain an “Important note” that reads:-

The following guidance is intended to assist grazings committees with regard to the use of grazings regulations. The guidance does not constitute legal advice, and should not be construed as such. Should a grazings committee and/or shareholder require legal advice on a matter concerning common grazings, independent legal advice should be sought from a suitably qualified solicitor.

So even the Crofting Commission acknowledge and accept that shareholders can and should seek their own independent legal advice.

Where on earth does Mr Souter get the idea from that they can’t?

I will now return to the original and more important question involved, namely VAT registration of Grazings Committees.

Mr Souter refers to me as “an expert on the subject”. I have, for the avoidance of any doubt, never been and certainly would not profess to be an expert on tax law or any matter concerning, in particular, VAT.

My concern is as an expert in crofting law advising crofters daily on that particular subject. My concern is that the Crofting Commission whose function is to regulate and promote the interests of crofting may instead be actively seeking to deprive crofters of VAT receipts.

VAT registration of Common Grazings was something that the Scottish Government insisted upon as part of entry into Woodland Grant Schemes. Did Mr Souter know that? Did the Crofting Commission advise their QC of that when seeking an opinion on the matter? Is the Scottish Government happy that Mr Souter and the Crofting Commission are challenging their policy on Crofters, Forestry and VAT?

Mr Souter says that he “can only hope Scottish Legal News readers will appreciate” his “need to ensure shareholders interests at Upper Coll are properly protected”. Is seeking to deprive them of VAT receipts protecting their interests? As Donald Rennie, Honorary President of the European Council for Rural Law, stated on the Crofting Law Blog:-

Let us for the moment assume that Mr Souter was properly appointed a grazings constable. In that office he would be a trustee for behoof of the Upper Coll crofters as beneficiaries. As a trustee his duty would be to protect the assets and income for the beneficiaries. In the event that his blundering and unnecessary interference results in the abilty to reclaim VAT being lost he will be liable to reimburse the crofters for the losses. The measure of damages would be the total expected VAT reclaim lost from the date of his interference until VATable receipts came in.

This is in addition to any other damages claims to which his improper and negligent acts and omissions expose him.

I have written to Fergus Ewing MSP expressing my concerns about this illegal ‘constable’ being allowed to wreak havoc by the Crofting Commission. I have copied my letter to Mr Souter out of courtesy. Mr Ewing has already had to rein in Convener Colin Kennedy. Now it is time for him to rein in another Colin.

I have been puzzled at the lack of public support from other villages, apart from the night in Stornoway Town Hall, but I have had it said to me several times that they have all done the kind of things for the good of the community, and for which we had previously been praised, and now they fear themselves being targeted. They have done precisely the same kind of things we are now being chastised for. VAT, small donations, foregoing share of feus in favour of our hospice. Ridiculous.

Crofting is not about a few sheep or a few cattle, it is about people and keeping people in our crofting areas. No one can make any kind of a living off crofting in our area. Nevertheless it is an important mechanism for maintaining “community” and all that means. Over half the townships don’t have a committee as a result of loss of “community”. The Commission instead of encouraging the ones which do exist are hounding them.

I have been told of one committee that has been disbanded until they see what the outcome of our situation is. They don’t want to be made personally responsible or be targeted the way our committee has been. They are all waiting to see what happens to us. This is no longer about Upper Coll but about the whole essence of what constitutes a “live” crofting community.

It is very difficult at times to remember the precise details of events of years ago. As the ”constable” has our minute book we don’t have our memory jogger.

The Gearraidh Ghuirm road construction, our esteemed constable seems to have placed such emphasis on, was to help the new householders get good access to their houses, as the village, whilst encouraging and accepting applications in an area of moorland, which was so useless it hadn’t even been fenced, made it quite clear to the purchasers, while they were getting the fues cheaply, the responsibility for the road was theirs and theirs only.

In a spirit of helpfulness, as was the case with the football and recreational facilities, we had enabled to happen, and for which again we are now many years later criticised, the village facilitated it by making application to the Council for money from it’s Unadopted Roads budget. The cash was provided by the Council and the feu holders. The village’s contribution was mainly “in kind”, material from the gravel pit we have developed ourselves over the years. Our ‘constable’ seems determined to find fault and tries to say by looking at our cashbook accounts of EIGHT years ago that we caused shareholders financial loss. Rubbish and now we have a street of houses, on what was useless ground, and up to 20 children … and we are now being hammered for being resourceful in enabling that to happen.

Now that our great ‘constable’ has highlighted what was a beneficial local practice which we all benefitted from, is there going to be pressure on the landlord to put a stop to it? I hope not, but him poking his nose in could very well have that effect.

I have seen the immense strain this has so unfairly placed on the former committee. Their families, who are not used to being under this kind of legal and media focus are completely perplexed by it all. I feel personally insulted on behalf of myself and the others of us whose forefathers created this village, that these people have demeaned all we have done for so many years, which led us to being widely recognised as a forward looking and well run grazings village.

Ivor Matheson and his ally Kenneth Macleod, who has not one facility for his cattle on his wife’s croft and is dependent on common grazings, have much to answer for. Those in authority who didn’t throw out their nonsensical complaints but used them to enable them to peddle some weird agenda have much more to answer for.

Heather Gray of Shetland won with her photo ‘Hentin Totties’, which shows a family of all ages working the land.

The competition, run in association with the Scottish Crofting Federation and the Crofting Commission, set out to explore what this traditional way of life means to crofters in 2014.

Miss Gray said: “I suppose my main inspiration for the photo is family. Seeing the extended family from grannies to toddlers coming together and helping out with the yearly crop – it just makes you smile.”

They also published a letter from me on the topic which they asked me to edit down in size prior to publication. I will reproduce here the longer version that I originally supplied them with:-

Sir – I was somewhat bemused by the headline in last week’s Scottish Farmer. The letter from Colin Souter, the grazings ‘constable’ appointed by the Crofting Commission, to shareholders at Upper Coll Common Grazings is certainly no ‘gamechanger’.

Had your reporter sought to verify this sensationalist piece of propaganda via the former committee members at Upper Coll or myself he would have received a very different take on it.

Also, even if Colin Souter had been appointed legally as a grazings constable that role is not (despite the name) in law an investigative one but one that simply takes on the duties of day to day management of the common grazings on behalf of and in the interests of the shareholders.

Colin Souter, a retired police chief inspector, seems to be under the misapprehension that he has been brought out of retirement to utilise his police skills. He even states on his LinkedIn profile that he is “engaged to support Scottish Government NDPB Crofting Commission, in investigative and reporting activity”. He has no remit of the kind and if he has actually been given such a remit then serious questions should be asked regarding the conduct of the Crofting Commission over and above the fact that, in the first place, they knowingly appointed him when they knew that legally they couldn’t.

It appears that the Crofting Commission are on a fishing expedition. They removed from office the former committee at Upper Coll purely on the basis that they had produced 5 years of financial statements prepared by an accountant rather than 5 years of “audited” accounts as unfairly and unjustifiably demanded by the Commission. This was met by overwhelming incredulity on the part of onlookers. Now the Commission are seeking to justify their actions on other grounds. They have sent in a former police inspector to find something, anything, to make everything alright again for them.

Colin Souter appears to have carried out the bidding of his masters. He has trawled through records of the Upper Coll Common Grazings going back to 2008 if not before looking for misdemeanours. This is well out with the 5 year ‘audit’ period the Crofting Commission initially concerned itself with.

Colin Souter has compiled a list but that list is of no significance. Some of it is petty in the extreme such as highlighting one typographical error on the part of the accountants instructed by the former committee in the financial statements that the Commission had not even been willing to look at. He has claimed that monies were contributed to upgrading a road in 2008 when this is denied by shareholders and even if it were true so what? He decries the spending of £520 on feu design work to allow crofting families in the township to remain in the township by allocating to them house sites on land that was not much use for grazing purposes. Any costs associated with that would be more than recouped when house sites were sold and compensation on resumption received. He does not understand that.

What Colin Souter also does not appear to understand is that a new grazings committee is elected every three years. Most of his accusations relate to the activities of the committee of 2008/09. There have been a further three committees elected since then. Even if what the grazings committee of 2008/09 did was wrong (and there is no evidence to suggest that it was) it does not justify the Crofting Commission removing from office a committee only elected in 2015.

Colin Souter claims there is nothing in the Crofters (Scotland) Act 1993 that permits shareholders funds to be used to pay solicitors. What nonsense. A right for crofters to instruct lawyers does not need to be contained in tablets of stone within the Crofting Acts. It is a fundamental human right. Try the Magna Carta for starters.

It is also of course rather ironic that a grazing ‘constable’ whose legality has been questioned from the outset is stating left, right and centre what he considers the law to be and how he considers former committees to have breached it. Presumably in circumstances where he has not actually sought legal advice on such pronouncements because he doesn’t consider expenditure on legal advice by a grazings committee to be legal!

The situation with the grazings ‘constable’ at Upper Coll has become farcical. I will be expressing my concerns to Fergus Ewing MSP, as cabinet secretary responsible for crofting, about this illegal ‘constable’ being allowed to wreak havoc by the Crofting Commission. Mr Ewing has already had to rein in Convener Colin Kennedy. Now it is time for him to rein in another Colin.

At a meeting in Upper Coll on the Isle of Lewis tonight, 10 September 2016, 17 shareholders (another 5 shareholders gave their apologies) met to form a new Grazings Committee. Four
shareholders were duly elected: Kenneth Macdonald, David Maclean, John Stewart and Scott Macrury.

Shareholders also agreed that another member could be co-opted at a later date.

A Petition signed by 26 shareholders was presented at the meeting stating:-

I support the election of a new Grazings Committee to run the affairs of Upper Coll Township. I also request the removal of the illegally imposed Grazings Constable with immediate effect.

The Factor of the Stornoway Trust was also in attendance and spoke to shareholders about certain public statements made by the ‘constable’. He felt that some of these needed correction. He duly did this.

The Crofting Commission were to be informed of these democratic decisions.

View from the Crofting Law Blog

It is to be hoped that the Crofting Commission accept these democratic decisions and ensure, in light thereof, that the Grazings ‘Constable’ (illegally appointed in my opinion and in the opinion of others including, rather ironically, the Crofting Commission itself) steps aside, hands over all documentation pertaining to the common grazings and returns control of the bank account to the new committee.

If they do not then the Scottish Government should step in once more and ensure that they do.

Our last post on this blog raised once more the issue of conflict of interest on the part of the Convener of the Crofting Commission, Colin Kennedy, over the Upper Coll affair. This, for completeness, is a good point to remind readers of the detail of that conflict of interest. We therefore now reproduce, with the author’s kind permission, a letter by Dr Iain MacKinnon that first appeared in the West Highland Free Press in July 2016:-

When that decision was made the Commission were in the process of investigating complaints from crofters at Upper Coll about the way in which Mr Kennedy had chaired a meeting in Upper Coll in November to discuss the grazings issue.

In light of this, Mr Kennedy’s decision to participate in the 9th December discussions raises ethical questions. The Scottish Government’s model code of conduct for standards in public life states that when confronted with a potential conflict of interest, members of public bodies must conduct ‘the objective test’ before proceeding. This test is severe. The member must consider ‘not only whether you will be influenced but whether anybody else would think that you might be influenced by the interest’.

Would a member of the public, with knowledge of the relevant facts, ‘reasonably regard the interest as so significant that it is likely to prejudice your discussion or decision making in your role as a member of a public body’? If there is even the possibility that a member of the public would regard the member as conflicted, then that member must withdraw.

In this instance the plain facts of the matter are that Mr Kennedy was the subject of outstanding complaints about his conduct made by members of a regulated grazings committee at the moment when the regulator, led by Mr Kennedy, took a questionable decision to remove that committee from office.

Indeed, as Mr Kennedy had chaired the November meeting between crofters and Commission in Upper Coll, we can only presume that it was on Mr Kennedy’s recommendation that the decision to sack the Upper Coll committee was made.

Mr Kennedy’s central role in the Upper Coll case casts further doubt on his judgement and fitness for public life – was it reasonable for him to have led on such a sensitive and controversial issue when he knew there were complaints outstanding against him?

The convener’s conduct in relation to Upper Coll is yet another straw on the back of the Commission donkey, already groaning under the weight of a series of related controversies about its competence and fitness for purpose. If the load of straw keeps getting heavier then at some point the accumulated weight will break the Commission’s back; the regulator will have lost the confidence of the electorate of crofters that it is there to regulate – indeed, Alastair Culbertson and Duncan MacDonald’s recent contributions to the debate demonstrate that confidence in the Commission has already evaporated even for crofters beyond Lewis.

To restore confidence in crofting regulation the Scottish Government’s recently announced review of Commission procedures must fully examine not only the organisation’s future working, but also the recent series of serious complaints which have cost it public trust.

If the practical reasoning and ethical standards of Commission members are found to be wanting, it is in the public interest for the Government to take action and to be seen to be taking action against those members upon whom responsibility is found to rest – including, if necessary, their removal from office. (Such actions should not preclude disbanding the Commission at a later date in favour of another form of regulation.)

Further, it is in the interests of the openness and transparency to which the Commission says it is “strongly committed” that the result of this investigation be fully and freely available to the crofting electorate.

Dr Iain MacKinnon is researching the politics of crofting at Coventry University, although this letter is not part of his academic work.

Other Commissioners have been thin on the ground of late as well with no Commissioner replacing the Convener when he failed to attend the Scottish Government Crofting Stakeholder Forum in Inverness on Tuesday. This left the Chief Executive, Catriona Maclean, representing the views of the Commission in front of BBC Alba after the meeting.

Getting clear and unambiguous information out of Commissioners when you can pin them down is also often a challenge.

One person who seems to have direct access without difficulty to Commissioners (which might include, or indeed mean, the Convener) is the Grazings ‘Constable’ of Upper Coll, Colin Souter. He certainly appears to be in possession of information that only Commissioners would have and that well in advance of such information being made available to anyone else outside of Great Glen House.

One example of that became clear at the meeting of the Scottish Government Crofting Stakeholder Forum in Inverness on Tuesday.

I had been aware from the published Agenda that the Board of the Commission had considered a paper at their meeting on 17th August on ‘Grazings Committees – A Practical Approach to the Management of Common Grazings’. There was no mention of that at the Stakeholder Forum so I enquired about it.

I was advised that the Crofting Commission was setting up a Stakeholders’ Working Group to advise on the revision of common grazings regulations and guidance. This paper from 17th August would be considered by that group at a meeting on 20th September. Only after that meeting would the paper in question (possibly after refinement? – but that was not made clear) be circulated to the wider Stakeholder Forum.

So at the moment members of the Stakeholder Forum had no knowledge of or access to what the paper in question said. A stark contrast to the access to that paper apparently afforded to Grazings ‘Constable’ Colin Souter.

In the letter issued by Colin Souter to Shareholders of the Upper Coll Common Grazings on 29th August he states:-

The Board of Commissioners at a recent meeting, considered a submission along the lines I set out at the July meeting, whereby Committees can operate within a defined financial framework which allows retention of funds (from any legitimate source) in the bank, up to a maximum agreed by shareholders, taking account of any commitments under Schemes and projects ongoing and an Emergency Reserve (set at perhaps 3-4 times the 3-year average annual maintenance costs) and exceeding that amount automatically triggers payment to shareholders, three or four times a year. In doing so, the administrative burden is minimised for the Committee and they are seen to be operating within an agreed and better regulated financial framework. Whilst the Commission has a clear role, as regulator, in ensuring feu monies are distributed to shareholders, I understand it does not otherwise seek any direct involvement in other areas of finance affecting shareholders. The proposal tabled is seen as an initiative worthy of testing, for the benefit of Upper Coll and the wider crofting community but it is a choice for shareholders to make.

So even before the Commission has had the first meeting of its new Stakeholders’ Working Group, to advise on the revision of common grazings regulations and guidance, Colin Souter is seeking to impose the guidance so far produced (that no one other than Commissioners, Commission Officials and Colin Souter have seen) upon one particular Common Grazings, namely Upper Coll.

Following receipt of legal opinion from Queen’s Counsel, the position of Grazings Committees being able to register for VAT as trading entities in order to reclaim VAT has come under scrutiny. The dialogue with HMRC regarding VAT status remains ongoing and once concluded, I will be able to advise on the outcome.

When I asked about this opinion at the Crofting Stakeholder Forum there was “no comment” from the Chief Executive of the Crofting Commission on behalf of the Board.

It is highly unusual for the Crofting Commission to publish legal advice received by them in any event.

On the topic of legal advice: Colin Souter seems very ready to challenge what he considers to be illegal activities at Upper Coll. It would be very unusual for a clerk in a common grazings (that is effectively what Colin Souter is had he been legally appointed) to appear so sure about crofting law without having sought legal advice. Not that I would give much weight to any advice that Colin Souter is getting given, in my view, a clear misunderstanding on his part as to what the law actually is.

We know that he thinks that legal advice cannot be paid for from grazings funds. So where is he getting his crofting law advice from? Is it likewise coming from Commission officials and/or from Commissioners and/or from a Commissioner? An organisation with a Board that has been shown to ignore the law and lawyers.

Why and how did one grazings clerk (i.e. Colin Souter) get privileged access to all of this information before any other grazings clerk in the land and before the members of the Crofting Stakeholder Forum? In the case of the opinion from Queen’s Counsel this may never be divulged to any other grazings clerks or to any members of the Crofting Stakeholder Forum.

The only explanation can be direct and special contact between him and a Commissioner and/or Commissioners and/or officials within the Crofting Commission.

Serious questions must be asked by the Scottish Government about this arrangement and, in the circumstances, the validity of any pronouncements by the Crofting Commission and/or their ‘Constable’ over the situation at Upper Coll.

The Crofting Commission will no doubt say that the Scottish Government cannot investigate the situation when it is subject to on going court proceedings. Those court proceedings may touch upon the legality of the appointment of the Grazings ‘Constable’ in the first place.

But even if we take it that the appointment was legal (although that is denied) then the Scottish Government should be looking at the propriety of the relationship that exists between such a legally appointed grazings constable and the Crofting Commission.

Is it correct and proper that he has been given an investigative remit? Is it correct and proper that he is being supplied with the information that he has been? If it is not then who gave that remit and/or supplied that information?

If that was a Commissioner are they therefore, in all the circumstances, “unable or unfit to exercise the functions of a member” or “unsuitable to continue as a member”? As such should the Scottish Ministers remove them from office under and in terms of the Crofters (Scotland) Act 1993?

Even worse if it were to transpire that it was the Convener who was embroiled in all of this. After all he has, for some time, been the subject of complaints about his handling of the affair at Upper Coll and so should not be involving himself in matters concerning Upper Coll until the relevant complaints process has been completed. To do so would be a clear conflict of interest. But there again that has not stopped him before.

Following receipt of legal opinion from Queen’s Counsel, the position of Grazings Committees being able to register for VAT as trading entities in order to reclaim VAT has come under scrutiny. The dialogue with HMRC regarding VAT status remains ongoing and once concluded, I will be able to advise on the outcome.

Why and how on earth was Colin Souter in receipt of legal opinion from Queen’s Counsel on the question of whether common grazings committees could be VAT registered?

Perhaps you can enlighten us as to how you came to be in “receipt of legal opinion from Queen’s Counsel” as stated in your letter to the Upper Coll shareholders?

Mr Souter has yet to answer my question.

So who instructed this legal opinion, who paid for it and why?

How did Colin Souter come to be in possession of it and why?

In his dialogue with HMRC is Colin Souter trying to stop VAT registration at Upper Coll Common Grazings and if so why?

It can only be assumed that the attempt to stop VAT registration of common grazings probably lies at the door of the Crofting Commission. Would this not be how a grazings ‘constable’ appointed by them would be in possession of such information?

It is therefore not a giant leap to think that the Crofting Commission and/or their Convener might be behind this attempt to stop common grazings being VAT registered.

If that should prove to be the case it is scandalous.

Questions regarding whether crofters should be VAT registered or not have absolutely nothing to do with the Crofting Commission. It is a matter between crofters and HMRC.

Public money should not have been spent on the opinion of Queen’s Counsel on such matters. If that has happened Audit Scotland should be investigating the issue. Another one for them to add to the growing list for their next visit to Great Glen House.

But more significantly why is the Crofting Commission and/or their Convener intent on depriving crofters of income? First it was SRDP funding. Now it appears to be VAT.

Under and in terms of the Crofters (Scotland) Act 1993 the Crofting Commission has as one of its functions:-

promoting the interests of crofting

On their website the Crofting Commission state that it:-

regulates and promotes the interests of crofting in Scotland to secure the future of crofting.

This statement links through to a general leaflet on crofting that states:-

The Crofting Commission is working to secure the future of crofting by creating and promoting a well regulated crofting system that positively contributes to the sustainability of rural communities.

By seeking to deprive crofters of SRDP funding and now, possibly, VAT the Crofting Commission cannot be said to be promoting the interests of crofting, securing the future of crofting or positively contributing to the sustainability of rural communities. Quite the contrary.

If Commissioners are acting in such a way, completely contrary to the functions that the Crofting Commission was established to carry out, then those commissioners responsible have no place in that organisation. They should be ashamed of themselves.

They are clearly “unable or unfit to exercise the functions of a member” or “unsuitable to continue as a member”. As such the Scottish Ministers may remove them from office under and in terms of the Crofters (Scotland) Act 1993. There have been repeated calls over recent months for such action to be taken but if ‘Crofting VATgate’ does fall at the door of the Convener and/or any other Commissioners then this surely is the final straw that broke the camel’s back.

Fergus Ewing MSP, as Cabinet Secretary for the Rural Economy and Connectivity with responsibility for Crofting, should immediately launch an investigation to get to the root of ‘Crofting VATgate’, publicise his findings for the benefit of crofters and take appropriate and decisive action against those responsible.

Many of the allegations made by Mr Souter actually, it transpires, relate to decisions made by shareholders when previous grazings committees were in power. Not the latest one which the Crofting Commission summarily removed from office for producing five years of financial statements prepared by an accountant rather than five years of “audited” accounts as demanded unfairly by the Commission.

Actions by past grazings committees cannot be used as evidence to justify the removal from office of a grazings committee that had no part in those actions.

Indeed it would appear that Mr Souter has been spending his time (and presumably as a result the shareholders money) trawling through the history of Upper Coll Common Grazings attempting to find fault wherever he can. His efforts in this regard go way back before the five year ‘audit’ period sought by the Crofting Commission.

Indeed the two main issues highlighted in the report by The Scottish Farmer date back to 2008/09. There have been three new grazings committees at Upper Coll since then!

Gordon Davidson reports in The Scottish Farmer:-

Top of his list was an application lodged with Comhairle Nan Eilean Siar seeking a grant under their Unadopted Road Upgrade Scheme, seeking £10,000 of matched funding to be spent on upgrading the landlord’s Ghearraidh Ghuirm private road.

In doing so, the former committee undertook to spend £20,000, including the CNES grant, of shareholders’ money on upgrading this section of road and also accepted the subsequent road maintenance obligation, in perpetuity – a decision of clear benefit to prospective few [sic – should have been “feu”] buyers, but with no apparent link to the maintenance or improvement of the common grazing.

“Thus, the spending of shareholders’ money in this way, was outwith the power of the committee at that time, meaning they acted outside of the law and the legal protection normally afforded,” noted Mr Souter.

This is what certain shareholders at Upper Coll have to say about this particular matter in a letter issued to shareholders in response to the one issued by Mr Souter:-

He accuses the then Grazings Committee of match funding the improvements to the Gearraidh Ghuirm Road behind Donald Campbell’s Garage. This is grossly untrue. The village did not put any money into this. The Councillors then in office helped facilitate the financial match funding from sources including contributions from residents. The village used some of this money to repair the road going out to the quarry, which in fact was an aid to the shareholders using the quarry and the peat-road! This was in 2008!!

Gordon Davidson also reports in The Scottish Farmer that Colin Souter:-

also found that the former committee had, in 2008/09 sought to earmark areas of common grazings land to be sold off as housing plots, and paid for the feu design work out of shareholders’ grazing funds, again acting outside of the law.

I asked shareholders at Upper Coll about this and was told that it was to allow crofting families in the township to remain in the township by allocating to them house sites on land that was not much use for grazing purposes. Any costs associated with that would be more than recouped when house sites were sold and compensation on resumption received.

Indeed consent to the sale of one such house site was raised as an agenda item at the meeting in November 2015 attended by the Crofting Commission, including Convener Colin Kennedy. This was approved at that meeting by the shareholders present. Of course the resumption application would be advertised in due course giving all and every shareholder the right to object should they wish to do so.

The house site under debate in November 2015 was, rather ironically, allocated to a relation of Ivor Matheson who brought the original complaint against the grazings committee and was so vocal in this week’s Scottish Farmer in support of the actions of Colin Souter which suggest this enterprising initiative on the part of the 2008/09 grazings committee to have been unlawful!

Ultimately shareholder funds are there to be utilised as shareholders want them to be. If all shareholders are happy to divert funds into a scheme on the common grazings that will result in benefit to members of the shareholders families, strengthen the crofting community and ultimately give a financial return what is wrong with that?

I do not believe that even Ivor Matheson would be looking for repayment of his share of the £520 (i.e. £12.38) spent on the feu design work given the benefit that small payment has had to his family.

It is clear that Mr Souter is making assumptions left, right and centre without appraising himself of the true facts. He is meddling in matters that are of no concern of his. He appears to have a goal, possibly at the behest of the master(s) who appointed him, to find fault with the former committee to justify his existence. He forgets he was illegally appointed and, like the Crofting Commission, has not been able to justify with reference to statute or case law the validity of his appointment. He forgets that grazings committees are appointed every three years and he cannot point the finger of blame at the last committee for the actions of their predecessors.

Ultimately, however, Mr Souter has produced a list of petty ‘faults’ most of which can be dismissed out of hand. He has certainly failed to produce the ‘gamechanger‘ that his master(s) may have wished him to find but that he had no remit to ever look for in the first place.

It should also be borne in mind that the initial action by the Crofting Commission against the former grazings committee at Upper Coll that ultimately resulted in the ‘appointment’ of Mr Souter centred around their misinterpretation of the law. A misinterpretation that the Commission have been reprimanded for by Fergus Ewing MSP and apparently has been accepted as such by them.

It has become a farce (although arguably has been for some time). Mr Souter and his master(s) look more ridiculous by the day over their handling of this whole sorry affair. In the process it is not reflecting well on the Scottish Government who have overarching responsibility for crofting.

In the letter of ‘appointment’ from the Crofting Commission addressed to Mr Souter it is stated:-

The appointment is for 6 months from the date of the Order. However the intention is that this should be a short term measure and once any outstanding actions are discharged, that you arrange a meeting of shareholders at which you will resign and a new committee will be elected by the shareholders to manage the grazings in accordance with the Regulations and the Act.

So the Crofting Commission saw the ‘appointment’ as short term and possibly expected it to have come to an end by now. Mr Souter’s duty was “to discharge any outstanding actions“. It is unclear whether he has in fact even applied himself to such a task and I will look at that in a further blog post. He appears, on the face of it, to have concentrated on a forensic examination of the history of Upper Coll Common Grazings. Something that he had no remit to do even if he had been legally appointed as a grazings constable.

The majority of shareholders at Upper Coll who attended a meeting convened for that purpose (there being no dissenters) have made it clear that they want nothing more to do with Mr Souter. They want to form a new grazings committee.

Mr Souter should respect the wishes of the shareholders who he supposedly represents. He should now do the honourable thing and ‘resign’ from his role as grazings ‘constable’ without further delay. He does not actually need to arrange a meeting of shareholders to do so, he can simply send them a letter or advise the Crofting Commission of his decision to do so and let them advise the shareholders accordingly.

This is what the similarly illegally appointed grazings constable at Mangersta Common Grazings saw fit to sensibly do.

Although arguably Colin Souter cannot resign from an illegal position that gives him no status or authority in the first place.

But the ‘resignation’ (as was the case in Mangersta) may have symbolic significance. It may at least draw a line under his interference in the workings of a common grazings where the vast majority of the shareholders simply wish to get on by themselves with controlling their own destiny and their own finances. They want to do so for the benefit of a community that Mr Souter and his master(s) appear intent on destroying.

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About the Crofting Law Blog

This blog explores crofting law.
It is brought to you by Inksters Solicitors, a law firm specialising in crofting law, with offices in Glasgow, Inverness, Forfar, Portree, Wick and a visiting base in Lerwick.
The main authors of posts on this blog are Brian Inkster and Martin Minton.